Under the North American Free Trade Agreement, the Trade NAFTA visa, or TN visa, allows certain Canadian and Mexican professionals to enter the United States for a temporary period to work for a U.S. employer. Today’s post concerns the process through which a TN visa professional applies for a green card through marriage to a U.S. citizen.
By virtue of marriage to a U.S. citizen a TN visa professional may be eligible to apply for a green card, which of course grants lawful permanent resident status.
The issue in pursuing a green card when an individual is in the U.S. on a TN visa is that the TN is a temporary nonimmigrant status that does not tolerate immigrant intent. Immigrant intent is the intent to apply for a green card in the U.S. and/or make the U.S. your permanent home.
Marriage and TN Visa Status Conflicts
When a foreign worker is granted TN visa status, it is with the explicit understanding that they maintain bona fide nonimmigrant intent during his or her entire time in the U.S. This means that the TN visa professional may not intend to remain in the U.S. permanently and must return to their home country when the work assignment has ended.
When the TN visa holder marries a U.S. citizen, however, that action can cast doubt on their nonimmigrant intent, since it could be assumed that they plan to reside in the U.S. permanently with their new spouse.
Therefore, the TN visa holder is advised to gain a clear understanding of current immigration laws, and devise an immigration strategy that will allow them to continue working in the U.S. while their green card application is being processed.
There are generally two routes a TN visa holder can take in their immigration strategy after marrying a U.S. citizen: immigrant visa processing or filing an application for adjustment of status. Which one the TN visa holder will choose will depend on a multitude of factors unique to their particular case.
The immigrant visa route is oftentimes considered the “safest” and most “kosher” route.
This route would require the U.S. citizen spouse to file an I-130, Petition for Alien Relative, on behalf of the TN visa holder.
After the I-130 has been approved, the case would be transferred to the National Visa Center and then ultimately to the U.S. Consulate in Montreal, if the TN individual is Canadian, or the U.S. Consulate in Ciudad Juarez, if the TN individual is Mexican.
The TN visa holder would then have to travel to the U.S. Consulate for an interview. Navigating the process via this route allows the TN visa holder the ability to maintain TN status throughout the process and travel internationally throughout the process, while also diminishing the possibility of immigrant intent allegations that could lead to significant complications.
Additionally, by leaving the U.S. and continuing the I-130 process through the U.S. Consulate, the applicant further demonstrates that they indeed regard their TN visa status as temporary.
In some scenarios, it might be okay to apply for for a green card through marriage via the adjustment of status route in the U.S. while on a TN visa. Applying for a green card through the adjustment of status route could be an option if the TN individual last entered the U.S. 90+ days prior and otherwise did not have any immigrant intent issues or concerns when they last entered. The TN individual could continue working on their TN while the application is pending, but they would have significant travel restrictions.
It is highly recommended to discuss your personal scenario with an experienced immigration attorney to determine if this option might be available.
There are additional considerations for newly married TN visa professionals during the green card application process, such as work and travel authorization:
- Continued work authorization – A TN visa holder who is pursuing a green card through marriage to a U.S. citizen may continue working on the TN regardless of which route is chosen, but there are potential issues regarding extending or changing employers when applying for a green card in the U.S. v. the immigrant visa route.
- Continued travel permission – Applying for the green card through immigrant visa processing allows the TN visa holder to travel and from the U.S. during the application process. Whereas, If a TN individual submits a green card application via the adjustment of status process in the U.S., they cannot travel out of the U.S. while the application is pending until they receive travel authorization, which takes approximately 3 months to be approved.
- TN renewal – If applying for a green card in the U.S., it will not be possible to renew or extend a TN after application submission, but one can apply for work authorization as part of the green card application, which takes approximately 3 months to be approved. Renewing or transferring employers is possible when applying for a green card via the immigrant visa route.
As can be seen, the process of going from a TN to a green card, when applying through marriage to a U.S. citizen, is a nuanced matter that is rife with potential pitfalls.
As such, it is highly advised to discuss your particular situation and options available with an immigration lawyer experienced with the intricacies of the TN visa and green card process.
Lightman Law Firm was recently honored as New York’s 2015 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.